WILLIE JAMES SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentence must be vacated and the case remanded for resentencing because the defendant was adjudicated guilty of sexual battery when he pled guilty to attempted sexual battery, and his scoresheet was improperly calculated.
[1] A defendant cannot be sentenced for or adjudicated guilty of a crime different from the one to which they pled guilty.
[2] Victim injury cannot be scored for sentencing purposes when it is not an element of the offense charged.
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Join FLexlaw to unlock all legal intelligenceSimmons was sentenced for sexual battery after violating probation, despite having pled guilty to attempted sexual battery. His scoresheet included po…
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SHARP, Judge.
Simmons appeals his five year sentence imposed for sexual battery1 after violation of probation. We vacate the sentence and remand for resentencing pursuant to the guidelines.2
The record in this case contains numerous errors. The most basic one is that Simmons initially pled guilty to attempted sexual battery,3 not sexual battery. Therefore he could not be sentenced for, or adjudicated guilty of, sexual battery.
Simmons’ scoresheet was improperly calculated. “Victim injury” is not an element of attempted sexual battery and it is error to add points4 for it in an attempted sexual battery case. Beasley v. State, 503 So. 2d 1347 (Fla. 5th DCA 1987).5 Further, there is no record evidence of any victim injury in this case.
Based on this record, Simmons’ guidelines score should have totaled 149 rather than 189, as indicated on the score-sheet. With a total score of 149, the presumptive guidelines sentence is “any non-state prison sanction.”6 Since Simmons was being sentenced after violating probation, the trial judge could have sentenced him to the next higher bracket without giving any reasons for imposing an aggravated sentence.7 However, in this case, the trial judge imposed a sentence representing a five bracket upward departure, and he failed to give any written reasons for the departure. This is clear error. Fla.R. Crim.P. 3.701(d)(11); State v. Jackson, 478 So. 2d 1054 (Fla.1985).
Because of these errors we vacate the sentence and remand for resentencing; and we direct that the judgment be corrected to show an adjudication for attempted sexual battery rather than sexual battery.
VACATE SENTENCE; REMAND.
DAUKSCH and COBB, JJ., concur. . § 794.011(5), Fla.Stat. (1984).
.. Fla.R.Crim.P. 3.701.
. §§ 794.011(5), 777.04(1), Fla.Stat. (1984).
. Forty points had been inserted for victim injury-
. Cf. Holloman v. State, 482 So. 2d 431 (Fla. 5th DCA 1985) (victim injury cannot be scored where it is not an element of the offense charged).
. Fla.R.Crim.P. 3.988.
. Fla.R.Crim.P. 3.701(d)(14).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Collier v. State, 535 So. 2d 316 (Fla. 1st DCA 1988)…red as a third degree felony. It has been repeatedly held that victim injury is not an element of attempted sexual battery, and therefore, it is error to score points for it. See Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988); Simmons v. State, 506 So. 2d 101 (Fla. 5th DCA 1987), and cases cited there. As indicated above, when the prior conviction is scored as a third degree felony instead of a second degree felony, the point total is reduced to 245 points. Subsequently, when this total is additionally r…
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Calleja v. State, 541 So. 2d 1340 (Fla. 5th DCA 1989)…l battery charges from 12-17 years’ imprisonment to 9-12 years. Victim injury is not an element of the crime of attempted sexual battery.1 Beasley v. State, 503 So. 2d 1347 (Fla. 5th DCA 1987), affirmed, 518 So. 2d 917 (Fla.1988); Simmons v. State, 506 So. 2d 101 (Fla. 5th DCA 1987). Accord Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988). Therefore, in accordance with the sentencing guideline rules applicable to this case, those points should not have been scored here. Accordingly, we vacate the sentence…
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Carter v. State, 561 So. 2d 1285 (Fla. 5th DCA 1990)…y held that victim injury was not an element of attempted sexual battery, and victim injury points could not be assessed. See Collier v. State, 535 So. 2d 316 (Fla. 1st DCA 1988); Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988); Simmons v. State, 506 So. 2d 101 (Fla. 5th DCA 1987). Those cases are controlling in this case.5 Accordingly, we quash the sentence and remand for resen-tencing within the 5½ to 7 year sentencing bracket. Sentence QUASHED; REMANDED for resentencing. DANIEL, C.J., and GRIFFIN, J.,…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Beasley v. State, 503 So. 2d 1347 (Fla. 5th DCA 1987)
- Holloman v. State, 482 So. 2d 431 (Fla. 5th DCA 1985)